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||Neutral Citation Number:  EWHC 935 (Admin)
||Case No: CO/9796/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR C M G OCKELTON, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Mr Alan Masters (instructed by South West Law) for the Claimant
Mr Stephen Whale (instructed by Treasury Solicitors) for the First Defendant
No appearance for the Second Defendant
Hearing date: 25 February 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr C M G Ockelton :
- Langley, in Buckinghamshire, lies between Heathrow Airport and Slough. Little Sutton Lane is on the South-East of the settlement. It is bordered by development of various sorts, before being cut off by the M4 running to the south. It is, however, in the Green Belt.
- The claimant, Billy Smith, lives with his immediate family in a caravan in the garden of his sister's home. He has bought the land facing that house, across the lane ("the site"). It is unused and largely overgrown. On it, or adjacent to it, there is a derelict caravan, which is the subject of an old but still extant enforcement notice. The claimant applied for planning permission for the site. The proposed development was:
"The use of land for the stationing of caravans for residential purposes for 1 no. gypsy pitch together with the formation of additional hard standing and utility/day room ancillary to that use."
- The application was refused by the second defendant, the Local Planning Authority, by notice dated 4 October 2011. The claimant appealed against that decision. An inspector, John Felgate, held a site visit on 13 March 2012 and issued his decision in writing on 3 August 2012. He dismissed the appeal. The claimant now challenges the inspector's decision under s.288 of the Town and Country Planning Act 1990 as unlawful. The grounds of challenge are first, that the inspector failed to act independently and thus acted with impropriety; secondly that his reasoning and approach were confused and misconceived and that he took into account immaterial matters and failed to take material matters into account.
- It is well established that a challenge under s.288 is not an opportunity to reargue issues argued before the inspector, or an opportunity to argue matters that could have been argued before the inspector (Humphris v SSCLG  EWHC 1237 (Admin) at ) nor is it an opportunity to review the planning merits of the inspector's decision: R (Newsmith Stainless Limted) v SSETR  EWHC 74 (Admin) at . The often-quoted remarks of Lord Hoffman in Tesco Stores v SSE  1WLR 759, 780 apply to this case:
"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgement, which is entirely a matter for the Planning Authority. Provided that the Planning Authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the Planning Authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.
This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgement are within the exclusive province of the Local Planning Authority or the Secretary of State."
- In these proceedings the court is accordingly concerned solely with whether the decision was one which the inspector was entitled to reach: only by showing that he was not so entitled, will the claimant show that the decision was not within the powers of the Act, as required by s.288(1)(b)(i).
- The main issues for determination are identified by the inspector at para 19 of his decision as follows:
- "The extent of the harm caused to the Green Belt in addition to the harm by reason of inappropriateness;
- the development's effects on the aims of the Colne Valley Park;
- whether there is a general need for gypsy and traveller sites at local, regional or national level;
- whether any alternative sites are available, or likely to become available through the development plan process;
Before considering the claimant's specific complaints about the decision, it is convenient to look at two specific issues of fact and evidence. The first relates to the claimant's own history. At para 68 of the decision, the inspector refers to the claimant's family (and, in the context, that must mean his immediate family, including himself) as having "apparently been at Sutton End Cottage since 2001". Their presence at Sutton End Cottage is, as I have indicated, their living in a caravan parked in the claimant's sister's garden. The evidence was that they sleep in the caravan and use the claimant's sister's cottage during the day. The finding that that had been the situation since 2001 was the subject of reference in Mr Whale's skeleton argument, but when I drew attention to it at the hearing it appeared to take Mr Masters completely by surprise. He then embarked on a suggestion that it was a misprint, or that in any event the inspector could not have meant to say "2001", because that might have resolved other issues before him in a different way. I do not accept either of those submissions. The inspector was not hearing an appeal against a refusal to issue a certificate under s.191, so it was not his function to decide issues of enforceability. The claimant's witness statement is in very general terms, and refers to no specific dates. The finding to which I have referred has not been the subject of challenge. The inspector held an oral hearing, and there is no good reason to think that the finding that the claimant had lived in his present circumstances since 2001 was not open to the inspector. I therefore proceed on the basis that that is indeed the fact.
- and whether there are any other relevant personal circumstances weighing in favour of the development."
The second issue relates to what was said at the hearing, or agreed between the parties, in relation to the issue of possible alternative sites for the claimant's home. A considerable part of Mr Masters' submission is that the parties before the inspector had agreed that there were no suitable alternative sites for the claimant to move to. If that were indeed the case, the inspector was not bound to accept the position agreed between the parties, but if he did not accept it, he was obliged to give the parties an opportunity to respond to his doubts. In his decision, however, the inspector does not record the position in the way it is asserted by Mr Masters. At para 56 he writes that "The Council accept that no other alternative sites are known". That, as it seems to me, is different from accepting that there are no alternative sites.
The claimant has not sought to introduce any note of what was said at the hearing itself, and, if there was, in advance of the hearing, any note of matters agreed between the parties, it has not been adduced in evidence. Although there is no formal requirement for a statement before a hearing, the lack of any bilateral evidence may indicate that the parties were not as clearly agreed on the point as Mr Masters suggests. The only other evidence going to the alleged agreement between the parties appears to be that in the witness statement of Matthew Green, who was the claimant's planning agent, and who was at the hearing. At para 7 of that witness statement Mr Green says "It was agreed between the parties that there were no suitable acceptable alternative sites". Mr Green has a great deal of experience, and indeed expertise, in relation to gypsy sites. His knowledge of this particular case, however, does not fall within that expertise. I note that on the issue that I have just dealt with, that is to say the history of the claimant's living in his sister's garden, at para 12 of the same witness statement, Mr Green says that "it is understood that the Local Authority, up until this appeal, were unaware of this breach of planning control". That is not right. As the documents that were available to Mr Green as they are to me demonstrate, the claimant's statement asserting his residence at Sutton End Cottage was made before the appeal, at the time of the application for planning permission. That may be a small matter, but it is sufficient to cause me to doubt whether Mr Green's evidence is reliable on this other matter.
I do not accept Mr Masters' suggestion that it was for the inspector to deal in his subsequent witness statements with the terms of the evidence before him: he had said what he thought he needed to say in the decision itself, and those witness statements were not the right place for defending his decision. The inspector's words at para 56 of his decision are clear, and despite the opportunities that existed before, during and after the hearing, there is in my judgement no evidence sufficiently reliable to show that the inspector had misunderstood the position as it was represented to him. I proceed on the basis that the position was as the inspector records.
That means that the question of whether there were any appropriate alternative sites was not something that the parties had tried to remove from the inspector's consideration by agreement on it. The fact that no suitable alternative sites had (yet) been identified meant, as the inspector points out, that the claimant still had the task of showing that there were none. In reaching a decision on that issue, the inspector was not departing from the agreed position asserted by Mr Masters, but was undertaking his task in the light of the rather narrower agreement that he recorded.
I turn now to the main issues identified for determination by the inspector.
The first is the extent of the harm caused to the Green Belt in addition to the harm by reason of inappropriateness. The inspector dealt with this issue primarily at paras 20 to 37. He concluded that the proposed development would cause significant harm to the Green Belt's openness, and to its character and amenity, and would conflict with the purposes of the Green Belt in relation to the prevention of urban sprawl and coalescence of developments. In reaching those conclusions he noted not merely that the general area of the proposed development was already compromised by other developments, and that the openness of the site was already compromised by boundary fencing. He also noted that both the proposed development and the entire site were relatively small.
The inspector's conclusions on these topics are challenged in the grounds for review. In his skeleton argument for the hearing, Mr Masters relies on three general propositions: that the inspector could not interfere with the claimant's rights under Article 8 unless there was lawful justification to do so and it was proportionate to do so; that the inspector was obliged to have regard to policy and Circular; and that he was obliged to have regard to relevant recent decisions. Those propositions are, I think, uncontroversial. They do not, however, advance the claimant's case under this particular head to any noticeable extant. Article 8 does not give the claimant or anybody else a right to live where they choose, or to develop property in order to live there. It is far from clear that the claimant's individual Article 8 rights were explored at the hearing, but the proper place for considering them is in relation to the claimant's personal circumstances, not in relation to the effect on the Green Belt. So far as the other matters are concerned, it seems to me clear that the inspector took into account everything that he ought to take into account. Previous decisions allowing development in the Green Belt do not show that further development ought to be allowed: indeed, the contrary may be the case. Looking at the matter as a whole I cannot see that it can be properly said that the inspector was not entitled to reach the conclusion he did in relation to the inappropriateness of the proposed development within the Green Belt.
The next issue was the effect of the proposed development on the aims of the Colne Valley Park. The inspector's conclusions are at paras 38 to 40 of his decision, and were not specifically challenged before me. As the inspector said, the aims of the Park overlap to some extent with Green Belt Policy. Nevertheless, as the inspector recognised, an area within the Green Belt that is also subject to another conservation-based policy may be regarded as additionally inappropriate for development. The inspector's conclusion was that:
"Given the Park's long-established status and strategic importance, I give significant weight to the harm that would be caused to its aims, over and above the harm to the Green Belt."
That was a conclusion to which he was entitled to come.
The next issue is "whether there is a general need for gypsy and traveller sites at local, regional or national level". The inspector's consideration is at paras 41-54. At the claimant's instance, he considered the history of the Council's policy CP4, which quantified the requirement for gypsy and traveller sites up to 2011, and Circular 01/2006, which he regarded as superseded by the current requirements of PPTS that authorities make their own robust assessments of need. An appeal decision relating to a caravan site at Mansion Lane in March 2011 identified a "clear and immediate need" for more gypsy and traveller sites in the district. The inspector concluded that it was reasonable to assume that that need had not been fully met, despite the allocation by the Council of seven more sites since that decision. On the other hand, the inspector declined to make findings based on unsubstantiated assertions by the claimant. His overall conclusion was that the claimant had established a measure of unmet need in the area. He expressly gave that factor moderate weight in the balancing exercise.
In the present challenge, the claimant has devoted a great deal of attention to this issue. But, as Mr Whale on behalf of the Secretary of State points out, the crucial points are first, that the inspector decided this issue in favour of the claimant; and secondly that matters of weight are for the inspector's planning judgment. As Mr Masters effectively demonstrated, the inspector could have reached his conclusion by one of a number of different routes: but Mr Masters did not suggest that the inspector should not have decided the issue of need in favour of the claimant, as he did. Having determined that there was a level of unmet need, the weight he gave to that issue was, in my judgement, a matter for him, and one that is not amenable to challenge in this court.
The fourth issue was whether any alternative sites are available, or likely to become available through the development plan process. This is, of course, the point on which the parties differed on what had been agreed or conceded before or at the hearing. I have concluded above that the matter was indeed one which the inspector had to decide, and not one on which, in making a decision, he was departing from a point agreed between the parties. In these circumstances it was for the claimant to establish that there were no suitable alternative sites. The inspector deals with the matter at paras 55 to 66 of his decision. He concluded in general that the claimant's arguments were more realistic than the Council's in relation to the likelihood of further sites becoming available within the immediate future: although a new County-wide assessment, leading to a development plan document for gypsy and traveller sites was to be undertaken, it seemed unlikely that there would be any practical results of that process before 2016. That aspect of his decision is not, as I understand it, challenged. So far as the claimant's need for one site at the present time is concerned, however, he said this:
"55. Although the appellant argues that no sites have been identified for gypsy and traveller development, this appears to be incorrect in the light of the extant permission for three pitches at the County Council-owned Mansion Lane site. Even if the County is not now intending to carry out the development, or is not in a position to, that need not prevent the site from being made available to an occupier on a self-funding basis. There is no evidence as to whether the County Council would be open to such an approach, but it is clear that the appellant has made no enquiries in that respect. This seems to me a significant failing, given that such enquiries could fairly easily have established whether the site is potentially available or not. "
The claimant objects to that conclusion. In his witness statement, Mr Green asserts that the inspector's underlying assumption was factually wrong. He says that if he had been asked, he could have confirmed that the County Council have made it clear that they have no current intention either of selling the three undeveloped pitches with planning permission at Mansion Lane, and have no plans to develop them. That may be so. The position is, however, that the inspector was told about the Mansion Lane decision, and those presenting the claimant's case did not provide the evidence that excluded those three sites from consideration as alternatives. In the circumstances, whether or not the inspector's conclusion is factually wrong, it cannot be said to be a conclusion that he was not entitled to reach. As is essentially accepted, there was no material before him that should have shown him those sites were not available or even that should have led him to ask questions about it. On the evidence, as the inspector concluded, the contention that no alternative sites were available had not been demonstrated.
The final issue identified for determination by the inspector was whether there are any other relevant personal circumstances weighing in favour of the development. The inspector summarised the personal circumstances of which he was aware, including, as I have mentioned above, his finding that the claimant had been living at Sutton End Cottage since 2001. As he noted, there was no evidence of any pressure to vacate that site, either from his sister or from the Council. The inspector noted a number of compassionate circumstances, including the fact the claimant had been subject to a knife attack some years ago and that the family would benefit from a more settled base near the claimant's mother and parents-in-law. He said that "these considerations add some weight in favour of the appeal, although none depend specifically on the present appeal site".
The inspector also noted that the claimant appeared to have bought the site without considering other alternatives: in other words, development at the site was established as his preferred option rather than as a necessity. In the circumstances, he decided to give the personal circumstances of the appellant and his family "moderate weight".
The claimant objects to the inspector's conclusion that there was no pressure to vacate the present site. It is said that there was no evidence that that was the case. If that is so, it is again an acknowledgement that the appellant had adduced no evidence which could establish his case that his present accommodation was not an appropriate alternative to that which he sought. Besides, it is not quite true that there was no evidence. Contrary, as I have indicated, to the assertion of Mr Green and his witness statement, the Council were aware of this breach of planning control before the appeal: and there had been no action in respect of it. If the claimant's sister was anxious for him to vacate his present accommodation, no doubt there would have been a statement to that effect before the inspector. There was none.
Looking, therefore, at those five issues, I do not discern any proper basis for saying that the inspector acted unlawfully in his conclusions on any of them. The general considerations urged on his behalf on this claim were, to a large extent, matters of background: the inspector was concerned with whether, in the appeal before him, the appellant had made his case. In that context the general level of unmet need forms part of the background; and previous determinations of similar appeals are likely to be only marginally material. What the inspector found in the present case was that the claimant had not established that there was no appropriate alternative site for him, and the factors in favour of the proposed development were outweighed by the harm to the Green Belt and to the Colne Valley Park.
If, contrary to my conclusions, the inspector had made some error of law, the question of whether the court should exercise its discretion to quash his decision would still require determination; and I heard submissions on this issue. A decision ought not to be quashed if there is no reason to suppose that it would not be the same if it were re-made.
The evidence before me suggests that the inspector may have been wrong in his supposition that the Mansion Lane sites might have been available to the claimant. If the matter were decided again, no doubt there would be evidence to that effect. On the other hand, there is no reason to suppose that there would be evidence other than that the claimant has lived in his present accommodation since 2001; and the assumption must be that that use of the land has become lawful by the effluxion of time. In these circumstances it seems to me inconceivable that an inspector would hold that the presently proposed development, in a neighbouring plot, should be allowed, despite the presumption against development in the Green Belt. For these reasons, if I had power under s.288(5) to quash the decision, I would not exercise it.
The other principal head of the claimant's claim related to an allegation of impropriety on the inspector's part. The basic allegation is put as follows in Mr Green's witness statement:
"18. After the Hearing there was a fairly lengthy delay in the decision coming out, part of this was a result of having to consult both parties on the effect of the publication of the National Planning Policy Framework and the Planning Policy for Gypsy and Traveller Sites. Even after this there was however a significant delay, such that a member of my Staff, Eleanor Kidd contacted the case office about the delay. We subsequently received on Friday 22nd June 2012, an email [attached as Exhibit MG1] clearly intended to be between casework staff at the planning inspectorate. Our receipt of this was seemingly unintentional as the case officer who sent it subsequently tried to withdraw it….
19. The email contains an extract from an email by the Inspector. That email extract reveal that the Inspector's decision was going to the read by the Inspector's "G&T [Gypsy and Traveller] training mentor and by reading unit". It seems likely that changes to the decision are likely to have been made after others had considered the Inspector's decision and as a result the independence of the Inspector as the decision maker appears to be in doubt.
20. We have subsequently written to Mark Southgate, the Director of Casework at the Planning Inspectorate asking a number of questions about this matter and requesting a copy of the decision as it was before it was seen by the Inspector's G&T training and mentor and by the reading unit."
The exhibited emails add nothing to that statement. By the time of the hearing there was a witness statement from the inspector, exhibiting, amongst other things, an earlier draft of his decision. In his witness statement he explains the role of mentors and of the reading unit. Mentors give general guidance on the approach to casework, advise on any weaknesses in reasoning in draft decisions, or suggest improvements or angles that need to be considered. They do not seek to change the outcome of appeals, which is always solely a matter for the appointed inspector. The inspector's mentor made a few comments, none of which had any relevance to the merits of the case or the outcome of the appeal. The Reading Unit's function is to maintain the quality and consistency of decisions.
The earlier draft decision exhibited by the inspector also dismisses the appeal. So evidently the result of discussions with the mentor was not to change the decision. I did not understand Mr Masters to identify any part of the decision as sent to the parties that would probably be described as having suffered the intervention of a person other than the inspector, to the claimant's detriment. Mr Whale did undertake that analysis. At paragraphs 17-26 of the original draft, relevant parts of the NPPF and the PPTS are summarised; in the version sent to the parties, para 17 reads simply as follows:
"The national policies contained in the Framework and the PPTS are relevant to the appeal, and have been taken into account."
On this point, all that the production of the earlier draft does is to confirm, if the matter were in doubt, that the inspector was aware of the terms of the policies to which he referred. At para 54 there is a reference to there being "little actual evidence" for the claimant's general propositions about unmet needs for gypsy sites; in the final version this has been changed to "these propositions are largely unsubstantiated" but the inspector has also added a paragraph dealing with needs following expiry of the predictions in policy CP4: his conclusion (which I have mentioned above) is largely in the claimant's favour.
There can be no general objections to mentors, acting in the way set out by the inspector in his witness statement. Some judges have them, too: the Judicial Studies Board's guidance on mentoring in Tribunals was issued in March 2004. Further, there can be no objection to the work of a "Reading Unit". Indeed, although the Reading Unit itself clearly consists of individuals, it may be very difficult to say that a decision has not been automatically corrected or even altered by word processing software: the use of which is clearly not improper. The claimant's general submissions that the existence of a mentor or the reading unit damages the inspector's independence are without merit, and the particular allegations made in the present case are also without merit. There was nothing wrong with Mr Green raising the issue; but the material disclosed demonstrates that there was no substance in his suspicions. The material upon which Mr Masters relied was wholly insufficient to establish the serious allegation he made. In my judgment, the allegation that the inspector behaved improperly was totally without foundation and ought not to have been advanced.
For the foregoing reasons, this claim is dismissed.
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